Date: 20071105
Docket: IMM-6137-06
Citation: 2007 FC 1146
Ottawa, Ontario, November
5, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
NAHMAN
CHARLES
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of the Immigration Appeal Division (the IAD) of the Immigration and
Refugee Board, dated October 31, 2006, which extended the respondent’s stay of
removal for a period of two years.
[2]
The
applicant requests that the decision be set aside and the matter be remitted to
a differently constituted panel of the IAD.
Background
[3]
The
respondent, Nahman Charles, is a citizen of Pakistan. He came to Canada in 1987 as a
visitor at the age of 5 and became a permanent resident on March 6, 1993. While
in Canada, the
respondent has been convicted of the following offences:
-
Assault
with a weapon on May 29, 2000 for which he received a sentence of 15 days
imprisonment;
-
Uttering
threats on August 2, 2000 for which he received a sentence of 1 day
imprisonment;
-
Mischief
over $5000 on March 23, 2001 for which he received a sentence of 30 days imprisonment;
-
Robbery
on March 23, 2001 for which he received a sentence of 3 months and 2 weeks of
imprisonment, 84 days of pre-sentence custody and 2 years probation; and
-
Possession
of cannabis on March 12, 2002 for which he received a sentence of 9 days of
pre-sentence custody.
[4]
As
a result of the respondent’s robbery conviction, a deportation order was issued
on January 7, 2002. The respondent appealed the deportation order to the IAD.
The appeal did not contest the validity of the deportation order, but instead
was made pursuant to paragraph 70(1)(b) of IRPA, that having regard to all the
circumstances of the case, the appellant should not be removed from Canada.
[5]
The
IAD panel heard testimony over two days on November 27, 2002 and February 17,
2003. A decision was rendered on March 12, 2003. The IAD panel issued an order
staying the respondent’s deportation for a period of three years. The panel
found that while the respondent’s criminal convictions were indeed serious, he
had taken significant steps to rehabilitate. The stay order was made with a
number of conditions, most notably that the respondent:
-
inform
the Department of Citizenship and Immigration and the Immigration Appeal
Division in writing in advance of any change in address;
-
keep
the peace and be of good behaviour; and
-
make
reasonable efforts to seek and maintain full-time employment and immediately
report any change in employment to the Department.
[6]
On
August 21, 2006, the IAD conducted an oral review of the stay of the
respondent’s removal order. The respondent was alleged to have breached the three
above noted conditions of the order. The IAD issued a written decision dated
October 31, 2006, which extended the stay of removal for another two years.
This is the judicial review of the IAD’s decision.
IAD’s Reasons
[7]
The
IAD began by noting the three specific conditions of the order that the respondent
was alleged to have breached:
-
That
he inform both the Department of Citizenship and Immigration and the
Immigration Appeal Division in writing in advance of any changes in address;
-
That
he keep the peace and be of good behaviour; and
-
That
he make reasonable efforts to seek and maintain fill-time employment.
Change of Address
[8]
With
regards to the condition of reporting changes of address, the IAD acknowledged
that a breach of the said condition had occurred, but found it not to be a
serious breach.
Keep Peace and Good
Behaviour
[9]
On
the condition of keeping peace and being of good behaviour, the IAD began by
noting the seriousness of breaching this condition. The IAD noted that between
May 2003 and October 2004, the respondent had been convicted of 11 offences
under the Highway Traffic Act and the Compulsory Automobile Insurance
Act. In relation to these convictions, the IAD made the following findings:
-
Such
actions are not those of an individual who is making scrupulous efforts to be
law-abiding so as not to jeopardize his already precarious status in Canada.
-
The
respondent’s convictions for failure to stop at a red light have the potential of
endangering the public.
-
The
respondent is a reckless and dangerous driver who is not deterred by repeated
convictions for the same offences, who drives uninsured vehicles, and who
drives while under suspension.
-
The
respondent’s lack of re-offending since October 2004 and payment of all fines
associated with these convictions is acknowledged, but is no reason to credit
him without reservation.
Full-time Employment
[10]
The
IAD began their review of this condition by noting that the evidence before the
IAD was at best inconclusive. The IAD found the respondent’s testimony on the
issue “glib and unpersuasive”. The IAD took issue with the following
submissions made by the respondent:
-
The
respondent claimed to be “controlling everything” in his barber shop business,
but did not know how much his employees were being paid because his brother
“takes care of paperwork”.
-
The
respondent testified before the IAD panel that he sells clothing at a flea
market in Downsview
Park under the
name “Block Productions”, but yet did not know whether the business was
registered.
-
The
respondent informed the IAD that his flea market operation (Block Productions)
was at some point being paid cash “under the table”. When asked if he was aware
that this could be an offence under the Income Tax Act, the respondent
explained that he did not “understand the system” and did not “know the
procedure”.
[11]
The
IAD also noted that in light of the respondent’s testimony concerning
employment matters, his income tax information was reviewed with considerable
interest. The IAD highlighted a number of discrepancies and peculiarities in
the respondent’s 2004 and 2005 income tax returns. The IAD found that the
respondent’s evidence was problematic and raised more questions than it was
capable of answering. Furthermore, the IAD found that much of the respondent’s
evidence lacked credibility and reliability.
[12]
Having
reviewed the alleged breaches individually, the IAD made the following comments
before rendering its decision:
In the panel’s view, the evidence is such
as to bring the [respondent] to the very edge of having his stay cancelled and
the appeal dismissed. At this review, the [respondent] has failed to establish
that he complied with a number of the conditions imposed on him in 2003, and
has not impressed the panel with his indifference and feigned ignorance. After
some reflection on this borderline case, the panel has decided to give the
[respondent] one final opportunity to demonstrate that he is willing and able
to comply with all Canadian laws, federal, provincial, and municipal, criminal
or otherwise, including tax laws.
[13]
The
IAD extended the stay of the removal order for a period of two years.
Issues
[14]
The
applicant submitted the following issue for consideration:
1. Did the IAD err in law
by breaching its duty of fairness and its statutory duty to provide reasons for
its decision?
[15]
I
would rephrase the issue as follows:
1. Did the IAD breach
the duty of procedural fairness by failing to provide adequate reasons for its
decision?
Applicant’s Submissions
[16]
The
applicant submitted that the IAD erred in law by breaching its duty of fairness
and its statutory duty to provide reasons for its decision. The applicant
submitted that subsection 54(1) of the Immigration Appeal Division Rules,
SOR/2002-230 mandates that the IAD provide reasons for decisions to stay
removal orders. It was submitted that the duty to give reasons is only
fulfilled if the reasons provided are adequate (VIA Rail Canada Inc. v. National
Transportation Agency, [2001] 2 F.C. 25 at 21 (C.A.)). With
regards to the adequacy of reasons, the applicant submitted that this is a
matter to be determined on a case by case basis, but as a general rule,
adequate reasons are those that serve the functions for which the duty to
provide them was imposed. (VIA Rail Canada Inc. above).
[17]
The
applicant submitted that in immigration matters, reasons must be sufficiently
clear, precise and intelligible to allow the Minister and the individual
affected to understand the grounds on which the decision is based. This in turn
enables the parties to exercise their right to seek leave and judicial review
and allows the Court to satisfy itself that the IAD exercised its jurisdiction
in accordance with the law. The applicant noted that reasons must be proper,
adequate and intelligible and must give consideration to the substantial point
of argument raised by the parties (see Mehterian v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 545 (C.A.)). The applicant
also submitted that when written reasons are required, it is not sufficient to
state that the determination in the affirmative is based on the evidence
without further explanation (Canada (Minister of
Citizenship and Immigration) v. Koriagin, 2003 FC 1210).
[18]
The
applicant noted that the entire thrust of the IAD’s findings and analysis was
that the respondent had failed to comply with the terms of his stay; moreover,
no findings or analysis were provided in support of the decision made. The
applicant submitted that the lack of findings and analysis in support of the
conclusion rendered has left the applicant to speculate as to the IAD’s
rationale for extending the respondent’s stay order. Furthermore, the applicant
submits that it is not enough that the IAD simply assert a conclusion without
further explanation. The applicant argued that this constitutes a breach of the
IAD’s duty of fairness and statutory duty to provide reasons for its decision.
The applicant submitted that a question as to the adequacy of reasons raises an
issue of procedural fairness and is reviewable on a standard of correctness (C.U.P.E.
v. Ontario (Minister of Labour), [2003]
1 S.C.R. 539).
Respondent’s Submissions
[19]
The
respondent agreed with the applicant’s submission that the test for adequacy of
reasons is as articulated by the Federal Court of Appeal in VIA Rail Canada
Inc. above. However, the respondent submitted that the reasons given by the
IAD were adequate in the particular circumstances of this case.
[20]
The
respondent submitted that the IAD was entitled to and was required to review
the respondent’s initial situation and any new matters that arose since the
stay was imposed (Beaumont v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1718). The
respondent submitted that in order to understand the respondent’s initial
situation, the reasons for the decision in the August 2006 reconsideration are
required to be read in conjunction with the initial March 2003 decision. The
respondent submitted when the two decisions are read together it becomes clear
that the respondent had breached two conditions of his stay, and possibly
breached a third, but definitively met the numerous remaining terms and
conditions of the stay. As such, the respondent submitted that when the IAD’s
decision is read in conjunction with the original stay decision, the reasons
for the decision are adequate.
[21]
The
respondent submitted that the applicant does not take issue with the adequacy
of the decision, but yet the weight that the IAD placed on the finding that the
respondent had breached only two terms and conditions of his stay order. The
respondent further submitted that issues of fact must be judged against a
standard of patent unreasonableness (Canada (Minister of
Citizenship and Immigration) v. Bryan, [2006]
F.C.J. No 190). Based on the standard of patent unreasonableness, the
respondent submitted that the IAD’s decision is not so unreasonable as to
warrant the intervention of the Court.
Applicant’s Reply
[22]
In
response to the respondent’s submissions, the applicant replied that while the
respondent has provided various reasons for which he believes his stay of
removal order was continued, these reasons were not provided by the IAD in its
decision. The applicant submitted that even if the March 2003 reasons and decision
are taken into consideration (as the respondent submitted they should be), they
shed little light on why the stay was continued in this case.
[23]
With
regards to the respondent’s submission that the applicant is really taking
issue with the weighing of the evidence and as such the appropriate standard is
one of patent unreasonableness, the applicant submitted that this is simply not
so. The applicant submitted that the IAD’s failure to give adequate reasons has
effectively precluded the Minister from exercising his right to challenge the decision
on the basis alleged by the respondent.
Analysis and Decision
Standard of Review
[24]
A
question as to the adequacy of the IAD’s reasons raises an issue of procedural
fairness and is reviewable on a standard of correctness (C.U.P.E.
above).
[25]
Issue
1
Did the IAD breach the duty
of procedural fairness by failing to provide adequate reasons for its decision?
The
applicant submitted that the IAD breached procedural fairness by failing to
provide adequate reasons for the decision to extend the respondent’s stay
order. The respondent submitted that adequate reasons were provided and that
the applicant was in fact taking issue with the IAD’s weighing of evidence, not
the adequacy of reasons.
[26]
I
am of the view that the applicant is questioning the adequacy of the reasons
and not the weighing of the evidence by the IAD.
[27]
In
VIA Rail Canada Inc. above, the Federal Court of Appeal stated at
paragraphs 21 and 22:
[21] The duty to give reasons is only
fulfilled if the reasons provided are adequate. What constitutes adequate
reasons is a matter to be determined in light of the particular circumstances
of each case. However, as a general rule, adequate reasons are those that serve
the functions for which the duty to provide them was imposed. In the words of
my learned colleague Evans J.A., “Any attempt to formulate a standard of
adequacy that must be met before a tribunal can be said to have discharged its
duty to give reasons must ultimately reflect the purposes served by a duty to
give reasons.” (J.M. Evans et al., Administrative Law (4th ed.) (Toronto: Emond
Montgomery, 1995) at 507).
22] The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the
parties and stating a conclusion. (Northwestern Utilities Ltd. v. Edmonton
(City), [1979] 1 S.C.R. 684 at 706, 89 D.L.R. (3d) 161.) Rather, the
decision-maker must set out its findings of fact and the principal evidence
upon which those findings were based. (Desai v. Brantford General
Hospital (1991), 87 D.L.R. (4th) 140 (Ont. Div. Ct.) at 148.) The reasons
must address the major points in issue. The reasoning process followed by the
decision-maker must be set out (Northwestern Utilities, supra at 707)
and must reflect consideration of the main relevant factors. (Suresh v. Canada
(Minister of Citizenship and Immigration), [2000] 2 F.C. 592 at 637 and
687-688, 183 D.L.R. (4th) 629 (C.A.)).
[28]
The
IAD’s decision did not merely recite the submissions and evidence of the
parties and state a conclusion. In fact, the IAD made a number of findings
throughout its decision, such as:
·
The
finding that the breach of the condition of reporting changes of address was
not a serious breach.
·
The
finding that the respondent is a reckless and dangerous driver who is not
deterred by repeated convictions for the same offences, who drives uninsured
vehicles, and who drives while under suspension.
·
The
finding that the respondent’s submissions and evidence regarding his efforts to
maintain full-time employment were at best inconclusive.
[29]
The
final paragraph of the IAD’s decision reads as follows:
In the panel’s view, the evidence is such
as to bring the appellant to the very edge of having his stay cancelled and the
appeal dismissed. At this review, the appellant has failed to establish that he
complied with a number of the conditions imposed on him in 2003, and has not
impressed the panel with his indifference and feigned ignorance. After some
reflection on this borderline case, the panel has decided to give the appellant
one final opportunity to demonstrate that he is willing and able to comply with
all Canadian laws, federal, provincial, and municipal, criminal or otherwise,
including tax laws. To this end, the appellant’s stay of removal will be
extended for two years.
[30]
It
appears from a review of the IAD’s decision that the findings made by the IAD
do not seem to support the final conclusion reached by the IAD. The decision
rendered was favourable to the respondent, but the findings made by the IAD
were not of the same nature. The reasons provided do not explain how the IAD
came to its conclusion based on the findings it made. The reasons do not
explain upon what evidence and finding the final decision was made. While the
IAD may have had good reason for extending he respondent’s stay order, it
failed to expressly state them in the decision. The IAD’s reasoning process was
not explained.
[31]
The
respondent argued that in order to fully understand the reasons for the IAD’s
decision, the March 2003 decision must be read together with the October 2006
decision. While I agree that the submissions, evidence and reasons of the March
2003 decision can be considered to provide some insight into why the IAD
reached the decision it did, it is not the role of this Court to speculate as
to the rationale behind the IAD’s decision. The rationale is stated by the
issuance of adequate reasons.
[32]
The
duty to provide reasons contributes critically to the accomplishment of an
agency’s mandate. As articulated by the Supreme Court of Canada in Baker
v. Canada (Minister of
Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193, reasons
fulfill a number of purposes:
- they ensure that
issues and reasoning are well articulated;
- they allow parties
to see that the applicable issues have been carefully considered; and
- they are invaluable
if a decision is to be appealed, questioned, or considered on judicial
review.
[33]
According
to the judgment in VIA Rail Canada Inc. above at paragraph 21, the
purposes for providing reasons are relevant to their adequacy: “adequate
reasons are those that serve the functions for which the duty to provide them
was imposed.”
[34]
In
the case at bar, I am of the opinion that these purposes have not been served
by the reasons provided. The reasons provided by the IAD have not ensured that
the reasoning upon which the decision was made was well articulated.
Furthermore, the inadequacy of the reasons provided deprives the applicant of a
full assessment of the possible grounds of appeal or review. This is especially
relevant given that the IAD’s decision is subject to a deferential standard of
review. The IAD did not provide adequate reasons for its conclusion.
[35]
For
these reasons, I am of the view that the IAD breached the duty of procedural
fairness by failing to provide adequate reasons for its decision. The
application for judicial review is allowed and the matter is referred to a
different panel of the IAD for redetermination.
[36]
Neither
party wished to submit a proposes serious question of general importance for
consideration for certification.
JUDGMENT
[37]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the IAD for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
Appeal Division Rules, S.O.R.12002-230:
|
54.(1)
The Division must provide to the parties, together with the notice of
decision, written reasons for a decision on an appeal by a sponsor or for a
decision that stays a removal order.
|
54.(1)
La Section transmet aux parties, avec l'avis de décision, les motifs écrits
de la décision portant sur un appel interjeté par un répondant ou prononçant
le sursis d'une mesure de renvoi.
|
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